State Consumer Disputes Redressal Commission
New India Assurance Company Ltd. vs Narinder Singh on 11 September, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
FIRST APPEAL NO. 463 OF 2010
Date of Institution: 25.03.2010
Date of Decision: 11.09.2013
1. New India Assurance Company Ltd., Regional Office, SCO
No.36-37, Sector 17-A, Chandigarh through its Assistant
Manager (Legal).
.....Appellant
2. New India Assurance Company Limited, Branch Office 36,
Gobind Niwas, G.T.Road, Jalandhar-144001 through its Branch
Manager.
.....Appellant/Opposite Party
VERSUS
Narinder Singh son of Sh.Mehar Singh resident of Village Pandori
Hasan, P.O. Lallu Ghuman, Tehsil and District Tarn Taran presently
at Kabari Market, Jahajgarh, Amritsar through its Attorney, Sh.Avtar
Singh son of Sh.Kahan Singh resident of H.No.18/850 Gali No.3, Kot
Mit Singh, Tarn Taran Road, Amritsar.
.....Respondent/Complainant
First Appeal against the order
dated 18.2.2010 passed by the
District Consumer Disputes
Redressal Forum, Amritsar.
Quorum:
Sh. Baldev Singh Sekhon, Presiding Member
Smt. Surinder Pal Kaur, Member Present:
For the appellants : Sh.B.S.Taunque, Advocate
For the respondent : Ex-parte
BALDEV SINGH SEKHON, PRESIDING MEMBER
This appeal has been filed by the appellant No.1 and appellant No.2/opposite party against the order dated 18.2.2010, passed by the District Consumer Disputes Redressal Forum, Amritsar (in short First Appeal No. 463 of 2010 Page 2 of 9 "District Forum"), vide which the complaint filed by the respondent/complainant was allowed.
2. Briefly stated, the facts of the case are that the complainant has filed this complaint before the District forum through his power of attorney, Sh.Avtar Singh S/o Sh.Kahan Singh wherein it was pleaded that he got insured his truck, bearing registration No.RJ-13-G-7108, with the opposite party, vide policy No.360900/31/07/01/00000657 for the period of 26.6.2007 to 25.6.2008 for a sum assured of Rs.5,49,000/-. The said truck was stolen on 30.8.2007 and the report to this effect was lodged with the PP Kot Mit Singh under Section 457/380 IPC and FIR No.139 was registered in PS Sultanwind. The truck could not be traced and the police issued Untraced Report dated 15.7.2008. He lodged the claim with the opposite party and submitted relevant documents from time to time. But it flatly refused to pay the claim without giving any valid reason. Hence, he filed the complaint before the District Forum seeking directions to opposite party to make the payment of his claim. Compensation of Rs.50,000/- alongwith litigation expenses were also demanded.
3. Upon notice, the opposite party appeared and filed written version in which it was submitted that on receipt of intimation regarding the theft of vehicle, it scrutinized the papers and observed that although the date of alleged theft had been stated as 30.8.2007 yet as per intimation letter given to the insurance company the said date of occurrence was 29.8.2007. Moreover, the said intimation was given to them for the first time after a period of one month and seven First Appeal No. 463 of 2010 Page 3 of 9 days without assigning any reason. As per basic condition of the motor policy, intimation regarding the occurrence is to be given by the insured immediately and maximum within 24 hours from the occurrence. It was further pleaded that it started writing letters to the complainant from 27.8.2007, which was followed by reminders dated 2.11.2007, 5.12.2007, 25.4.2008, 4.6.2008, 2.7.2008, 21.8.2008, 22.10.2008, 3.12.2008, 21.1.2009 and 8.9.2009 calling upon him to submit the requisite documents but he did not bother to supply the same. Instead of completing the said formalities, the complainant filed the present complaint, which was pre-matured and, as such, is not maintainable. It was further submitted that if the complainant complied with the formalities, as required by opposite party, it was still ready to consider and decide the claim on merits as per terms and conditions of the motor policy. Denying all other allegations, dismissal of the complaint was prayed.
4. The learned District Forum, after going through the pleadings of the parties and evidence on record, allowed the complaint and directed the opposite party to pay the insured amount besides paying Rs.3,000/- as compensation and Rs.2,000/- as litigation expenses.
5. Aggrieved by this order, appellant No.1 and appellant No.2/opposite party have come up in appeal on the ground that there was no allegation by the complainant regarding the repudiation of his claim nor any document has been placed on record to show that the claim was repudiated by the insurance company. It is settled law that cause of action in insurance matters arises only on the repudiation of First Appeal No. 463 of 2010 Page 4 of 9 the claim by insurance company. The learned District Forum has gravely erred by not considering preliminary objections regarding maintainability of the complaint. It was specifically pleaded that the complainant had preferred the complaint through his attorney Sh.Avtar Singh, who had no blood relation with him. HON'BLE Supreme Court have discussed this aspect at length in various judgments and even as per rules framed under the Consumer Protection Act, it has been made very clear that the complaint cannot be filed through attorney. The complaint must be filed by the complainant himself and thereafter the same can be pursued by his attorney. His attorney has no right to depose with respect to the facts which are within the knowledge of his master. The District Forum has also ignored the averments regarding non-cooperation by the complainant in supplying the requisite documents. The appellant insurance company had written letter dated 27.8.2007, which was followed by 10 reminders including final notice dated 21.1.2009 whereby the complainant was told that in case he did not supply the documents then his claim will be filed as "no claim". As such, the complainant has neither completed the formalities nor paid any heed to the repeated reminders. Acceptance of the appeal and setting aside of the impugned order was prayed.
6. We have thoroughly gone through the pleadings of the parties, considered the submissions of the learned counsel for appellants and have carefully perused the evidence on record.
First Appeal No. 463 of 2010 Page 5 of 9
7. The undisputed facts of the case are that the vehicle of the complainant was stolen on 30.8.2007 during the subsistence of the insurance policy taken by him from the opposite party for a sum assured of Rs.5,49,000/-. The report regarding theft was lodged with the PP Kot Mit Singh on 30.8.2007 i.e. on the same day by Sh.Avtar Singh S/o Sh. Kahan Singh under Section 457/380 of IPC (Ex.C-3). FIR No.139 was registered under PS Sultanwind. The police investigated the matter and declared the vehicle as untraceable. The untraceable report (Ex.C-4) was submitted to the trial court on 13.11.2007.
8. The opposite party has contended that the intimation regarding the theft was given to Insurer after a period of one month and seven days which had taken away the right of the opposite party to make efforts to trace out the stolen vehicle as well as to carry out the investigation regarding the alleged occurrence. The claim of the complainant has not yet been settled by the opposite party. It is further averred that on the receipt of the intimation regarding the theft, the complainant was asked to submit certain documents vide letter dated 2.11.2007 (Ex.R-2), which was followed by reminders Ex.R-3 to R-11. From the scrutiny of these letters it is seen that in the first letter dated 5.12.2007 (Ex.R-3) the complainant was asked to produce the registration book of the vehicle, route permit/fitness certificate of stolen vehicle, driving licence of Avtar Singh, untraceable certificate of the vehicle and to supply the English translation of the FIR. Complainant was also asked to clarify the delay in reporting the theft First Appeal No. 463 of 2010 Page 6 of 9 to the opposite party. But in subsequent reminders (Ex.R-4 to R-7) only two documents namely untraceable report and English translation of the FIR were demanded confirming thereby that other documents demanded earlier, were received by them. However, in subsequent reminders (Ex.R-8 to R-10) claim form duly filed was also demanded. The complainant has contended that he had already supplied these documents to the opposite party. He has proved on record these documents also before the District Forum as Ex.C-3 and C-4, copies of which are invariably given to the opposite party as well. Under these circumstances, it cannot be sad that the complainant has not submitted requisite documents. It is the admitted case of opposite party that they had already received intimation regarding theft (though belated) and the claim No.31/07/314 was also registered with them. This claim number is mentioned in all the reminders issued by the opposite party. Thus, it cannot be believed that he did not file the claim with opposite parties. Otherwise also, in case of theft of vehicle, only the IDV of the insured vehicle is to be paid. Even after the receipt of these documents including the untraceable report and the English version of the FIR, the opposite party has failed to settle the claim of the complainant.
9. It has been contended that the intimation regarding the theft of vehicle was given after a period of one month and seven days which was required to be given immediately. Terms and conditions of the standard form for "commercial vehicle package policy" has been placed on record alongwith policy document (Ex.R-12) at page 175 of First Appeal No. 463 of 2010 Page 7 of 9 the District Forum file by the opposite party and condition No.1, which deals with the giving intimation to the company, reads as under:-
"Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution inquest or Fatal Inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this Policy the insured shall give immediate notice to the police and co-operate with the Company in securing the conviction of the offender."
10. The plain reading of this condition shows that immediate intimation in writing was required to be given to the insurance company upon the occurrence of any accidental loss or damage whereas in case of theft or criminal act, the insured is required to give immediate notice to the police which, in this case, had been duly given by the complainant on the date of the theft itself. The contention of the opposite party that it was deprived of its right to investigate the matter is not tenable because the theft matters are to be First Appeal No. 463 of 2010 Page 8 of 9 investigated by the police and not by the Insurance Company and claim is to be settled on the basis of the said investigation and the untraceable report. This report has already been proved on the file by the complainant. The copy of same was also given to the counsel for the opposite party.
11. Moreover, no one stopped the opposite parties from investigating the facts at their own level after the receipt of intimation about theft. Since appellants have not disputed the theft of vehicle, non-settlement of the claim by them inspite of having received all the documents specially during pendency of the complaint before the District Forum, definitely constitutes a deficiency in service on their part. Instead of settling the claim, opposite party has filed the present appeal only to harass the complainant on flimsy grounds.
12. Even though there is no bar in filing the complaint through duly authorised attorney under Consumer Protection Act, 1986 and Regulations made thereunder but we find merit in the contention of the opposite party that the evidence of said attorney in the form of affidavit on behalf of the complainant cannot be read, as such. But the FIR regarding the theft of the vehicle was filed by said attorney, Sh.Avtar Singh himself and his deposition to that extent is definitely acceptable. Moreover the case of complainant is established independently on the basis of the documents proved on record without placing reliance on the affidavit of the attorney.
13. In view of the above discussion and findings, we find no merit in the appeal of the appellants and the same is dismissed with cost of First Appeal No. 463 of 2010 Page 9 of 9 Rs.5,000/- and the impugned order of the District Forum is affirmed and upheld. However, the complainant is directed to submit letter of subrogation and to transfer the ownership of the insured vehicle in the name of the appellant within 15 days of receipt of copy of this order.
14. The appellants deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount, alongwith interest, which has accrued thereon, if any, be remitted by the Registry to the respondent/complainant, by way of a crossed cheque/demand draft, after expiry of 45 days under intimation to the learned District Forum.
15. The arguments in the case were heard on 29.8.2013 and the order was reserved. Now, the order be communicated to the parties.
16. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(BALDEV SINGH SEKHON) PRESIDING MEMBER (SURINDER PAL KAUR) MEMBER September 11, 2013 VINAY